Orphan work
Definition An '''orphan work' is Overview "Under current law, anyone who uses an orphan work without permission runs the risk that the copyright owner(s) may bring an infringement lawsuit for substantial damages, attorneys' fees, and/or injunctive relief unless a specific exception or limitation to copyright applies. In such a situation, a productive and beneficial use of the work may be inhibited — not because the copyright owner has asserted his exclusive rights in the work, or because the user and owner cannot agree on the terms of a license — but merely because the user cannot identify and/or locate the owner and therefore cannot determine whether, or under what conditions, he or she may make use of the work. This outcome is difficult if not impossible to reconcile with the objectives of the copyright system and may unduly restrict access to millions of works that might otherwise be available to the public (e.g., for use in research, education, mainstream books, or documentary films)."U.S. Copyright Office, "Orphan Works and Mass Digitization," 77 Fed. Reg. 64555 (Oct. 22, 2012). The most common obstacles to successfully identifying and locating the copyright owner are (1) inadequate identifying information on a copy of the work itself; (2) inadequate information about copyright ownership because of a change of ownership or a change in the circumstances of the owner; (3) limitations of existing copyright ownership information sources; and (4) difficulties researching copyright information. Orphan works are perceived to be inaccessible because of the risk of infringement liability that a user might incur if and when a copyright owner subsequently appears. Consequently, many works that are, in fact, abandoned by owners are withheld from public view and circulation because of uncertainty about the owner and the risk of liability. The risk of infringement may be particularly burdensome when a creator incorporates a protected work into a new adaptation or transformative work. How then is public policy best served by facilitating the public’s access to and use of such a work? And how best to define what constitutes an orphan work for infringement purposes, to facilitate access to orphan works, and to promote their use without vitiating the copyright or unfairly appropriating the work into the public domain? The uncertainty surrounding the ownership status of orphan works does not serve the objectives of the copyright system. For good faith users, orphan works are a frustration, a liability risk, and a major cause of gridlock in the digital marketplace. The consequences of this uncertainty reverberate through all types of uses and users, all types and ages of works, and across all creative sectors. By electing to use a work without permission, users run the risk of an infringement suit resulting in litigation costs and possible damages. By foregoing use of these works, a significant part of the world's cultural heritage embodied in copyright-protected works may not be exploited and may therefore fall into the so-called "20th-century digital black hole." Reasons for orphan works The change in the 1976 Copyright Act to providing automatic copyright protection that subsists immediately upon fixation of a work has exacerbated the orphan works issue, in that a user generally must assume that a work he wishes to use is subject to copyright protection, and often cannot confirm whether a work has fallen into the public domain by consulting the renewal registration records of the Copyright Office. It should be noted, though, that Congress was cognizant of this consequence of the switch to a life-plus-50-years system at the time it passed the 1976 Act. Congress recognized the problem, but considered it to be outweighed by the many benefits of the new system: The orphan works problem is thus a by-product of the United States’ modern copyright system, and has been with us since at least the day the 1976 Copyright Act went into effect. U.S. copyright law provisions that relate to orphan works While U.S. copyright law does not contain an omnibus provision addressing all orphan works as such, it does contain a few provisions that permit certain users to make certain uses of certain classes of orphan works, and other provisions that reduce the risk in using an orphan work. There are thus already some “orphan works provisions” in U.S. copyright law, although they are not labeled as such. These provisions include section 108(h), section 115(b), section 504©(2), and the termination provisions (sections 203, 304©, and 304(d)).Other provisions in the Copyright Act can permit use of orphan works. For example, statutory licenses other than section 115 (such as the licenses available under sections 112, 114, and 118) can permit use of an orphan work. See 37 C.F.R. §§253.9, 260.7, 261.8, 262.8 (2005). Similarly, any of the exceptions to copyright — for example those found in section 110 — could permit use of an orphan work. These provisions are those that bear the closest resemblance to an orphan works provision, and those that are the most instructive for the drafting of an omnibus orphan works provision. Specific orphan works legislation In January 2005, the Copyright Office issued a Notice of Inquiry requesting public comment from interested parties on the subject.Copyright Office, Orphan Works: Notice of Inquiry, 70 Fed. Reg. 3739 (Jan. 26, 2005). The Copyright Office accepted written comments and hosted public roundtable discussions on the topic. In January 2006, it issued its Report on Orphan Works (full-text), which recommended that the Copyright Act be amended to limit the remedies available against users of orphan works who (1) demonstrate that they performed a reasonably diligent search to find the copyright owner without success and (2) provide reasonable attribution to the author and copyright owner. The limitation on remedies the Copyright Office proposed was twofold. First, it would limit monetary relief to reasonable compensation for the use — completely eliminating monetary relief where the use is noncommercial and the user ceases the use upon notice. Second, it would limit the ability of the copyright owner to obtain injunctive relief, so that a user who relied on the work’s orphan status could continue to exploit a derivative work based on that orphan work, with appropriate compensation to the right holder. On March 8, 2006, the House Subcommittee on Courts, the Internet, and Intellectual Property held a hearing on orphan works.See House IP Panel Chairman Pledges to Move Orphan Works Legislation in ‘Coming Weeks,' 71 BNA Pat., TM & Copyright J. 521 (Mar. 17, 2006). The Senate Judiciary Committee held a hearing on April 6, 2006.Orphan Works: Proposals for a Legislative Solution: Hearing before the Senate Comm. on the Judiciary, 109th Cong., 2d Sess. (2006) (full-text). Congress came very close to adopting orphan works legislation in 2008, but ultimately did not do so before adjourning. References See also * Marybeth Peters, "The Importance of Orphan Works Legislation" (U.S. Copyright Office Sept. 25, 2008) (full-text). Category:Copyright Category:Definition